STATUTE OF LIMITATIONS

Tennessee medical malpractice law, referred to as “health care liability” by the Tennessee Code Annotated, differs in many aspects from Georgia medical malpractice law. First, the statue of limitations for medical malpractice cases in Tennessee is only one (1) year, as opposed to two years in Georgia. Tenn. Code Ann. § 28-3-104, § 29-26-116. The one-year period begins to run from the date of discovery. Id. No action shall be brought more than three years from the negligent act or omission, unless there is fraudulent concealment by the defendant. Tenn. Code Ann. § 29-6-116 (a)(2).

ELEMENTS OF MEDICAL MALPRACTICE

Tennessee Code Annotated § 29-26-115 sets out the requirements for a health care liability action. Under this code section, the claimant has the burden of proving:

(1) the recognized standard of professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time of the alleged injury or wrongful action occurred; (2) that the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and (3) as a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred. Tenn. Code Ann. § 29-26-115(a).

Essentially, the plaintiff must establish the standard of care in that community, show the defendant breached that duty of care, and that the breach of the standard caused the plaintiff’s injury. This are of the code section varies little from Georgia law.

EXPERT QUALIFICATIONS

However, perhaps the largest distinction between Georgia medical malpractice law and Tennessee health care liability lies in the expert qualification requirements. The applicable code sections states:

No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required by subsection (a), unless the person was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make the person’s expert testimony relevant to the issues in the case and had practiced this profession or specialty in one (1) of these states during the year proceeding the date that the alleged injury or wrongful act occurred. Tenn. Code. Ann. § 29-26-115 (b).

Thus, in order to establish the three requirements stated in subsection (a), there must be an expert, who practices in that field or specialty, in Tennessee or a contagious border state, and must have practiced in the year preceding the negligent act or omission.

LOCALITY RULE

The “locality rule” refers to the portion of Tennessee Code Annotated § 29-26-15(b), which states, “recognized standard of acceptable professional practice … in the community in which the defendant practices or in a similar community.” Previously, Tennessee common law operated under a “strict locality rule”, which required that an expert must be familiar with the standard of care in the locality in which the defendant practiced. Shipley v. Williams, 350 S.W.3d. 527, 537. That standard has since been relaxed and an expert is qualified to testify to the standard of care if they can show they are familiar with the standard of care in that community or a similar community. Id. While the courts have broadened the standard of the locality rule, they have declined to adopt a national standard of care. Id. at 545.

FILING OF CERTIFICATE OF GOOD FAITH

§ 29-26-122 of the Tennessee Code Annotated sets out an additional requirement for a medical malpractice suit in the state of Tennessee. § 29-26-122 states that if the plaintiff does not file a certificate of good faith with the complaint, the complaint shall be dismissed. Subsection (a) requires that the certificate of good faith must state (1) that the plaintiff has consulted with one or more experts who have provided a written statement confirming that upon information and belief they:

(A) Are competent under §29-26-115 to express an opinion or opinions in the case; and

(B) Believe, based on the information available from the medical records concerning the care and treatment of the plaintiff for the incident or incidents at issue, that there is a good faith basis to maintain the action consistent with the requirements of § 29-26-115; or;

(2) The plaintiff or plaintiff’s counsel has consulted with one ore more experts who have provided a signed written statement confirming that upon the information and belief they:

(A) Are competent under §29-26-115 to express an opinion or opinions in the case; and

(B) Believe, based on the information available from the medical records concerning the care and treatment of the plaintiff for the incident or incidents at issue and, as appropriate, information from the plaintiff or others with knowledge of the incident or incidents at issue, that there are facts material to the resolution of the case that cannot be reasonably ascertained form the medical records or information reasonably available to the plaintiff or plaintiff’s counsel; and that, despite the absence of this information, there is a good faith basis for maintaining the action as to each defendant consistent with the requirements of § 29-26-115. Refusal of the defendant to release the medical records in a timely fashion or where it is impossible for the plaintiff to obtain the medical records shall waive the requirement that he expert review the medical records prior to expert certification.

Experienced Atlanta, GA Lawyer for Catastrophic Medical Malpractice Cases

 

Catastrophic medical malpractice can result in permanent disability or even death for its victims. For this reason, individuals who have suffered due medical malpractice can obtain compensation for their injuries. By securing an experienced Atlanta, GA lawyer for catastrophic medical malpractice cases the victim and his or her family will be able to start the process of recovering from their injuries.

 

What is Catastrophic Medical Malpractice?

Medical malpractice occurs when the patient suffers injury or death due to the negligence of his or her healthcare providers. Examples of medical malpractice on the part of a healthcare provider can include the following actions:

• Failing to promptly treat the patient’s health condition, resulting in avoidable health problems.

• Failing to properly diagnose the patient’s health issues.

• Prescribing or administering incorrect medication to the patient.

• Failing to properly supervise nurses and other healthcare providers during the patient’s recovery.

• Committing egregious errors during a surgical procedure.

In all of these cases, the patient will often suffer long-term side effects from his or her maltreatment. These effects can include the need to endure other medical procedures in order to rectify the errors in treatment, long-term disability, and in some cases, death. In many cases, the worst symptoms may not manifest until sometime after the treatment, making it vital that the victim consult with an attorney skilled in developing a persuasive malpractice case.

Types of Compensation

When an individual suffers from catastrophic medical malpractice, he or she can obtain compensation from the court. In general, malpractice compensation is divided into real damages and punitive damages.

Real Damages

Real damages are focused on compensating the individual for the actual damage caused by the medical malpractice. This category includes a wide range of factors, and the victim may receive compensation for the following types of damage:

• The costs of any current or future medical treatment the victim must receive, including long-term rehabilitation or care.

• Compensation for lost wages and work opportunities.

• Compensation for pain and suffering, including both physical and mental anguish.

• If the victim is crippled or killed, his or her family can receive compensation for any lost companionship and support from their loved one.

Because estimating the proper amount of real damages to claim can be a very complex issue, it is important to have a lawyer present who can effectively present the victim’s case to the court. An experienced Atlanta, GA lawyer for catastrophic medical malpractice cases can help ensure that all of the victim’s will receive full compensation from the defendants for all of his or her real damages.

Punitive Damages

Punitive damages are imposed in cases of egregious negligence or actual malice. These damages can be imposed on more than one individual or group. For example, a hospital that failed to remove an alcoholic employee would be liable for punitive damages due to its failure to adequately supervise its employees. Ultimately, by finding an experienced Atlanta, GA lawyer for catastrophic medical malpractice cases, the victims of medical malpractice and their families alike can obtain a just compensation. In many cases, having a skilled attorney present will convince the defendant to settle out of court, eliminating the need for a long and stressful trial. For this reason, anyone who has suffered from any type of catastrophic medical malpractice should immediately contact the law offices of James R. Haug in order to schedule a consultation to determine how best to proceed with his or her case.

 

 

 

Haug Law Group, LLC

www.hauglawgroup.com

1-844-HAUGLAW

An undetected brain injury can result in serious long-term mental and physical problems. Because of this, individuals who have been involved in an accident that may have resulted in brain damage may be able to obtain compensation for their injury, if they take the correct steps.

The Defendant notes in his own brief that case law concerning the statute of limitations for misdiagnosis cases state that “the statute of limitations begins running when the injury occurs rather than on the date of the negligent act.” (See Brief in Support of the Motion for Summary Judgment of Defendant, hereinafter “Defendant’s Brief,” II, B, Π 1 citing Witherspoon v. Aranas, 254 Ga.App. 609 (2002)).

However, there are exceptions to this general rule such as the subsequent injury exception in misdiagnosis cases. Even as recent as the end of 2009, the Georgia Supreme Court reaffirmed and provided a very helpful analysis of this exception in McCord v. Lee, No. S08G1947 (2009). McCord cites Brown v. Coast Dental of Ga., which states that “misdiagnosis cases are useful in that, while they discuss an ‘exception’ to the two-year statute, they are simply applying the basic rule that the statute begins to run when the injury occurs, which is not necessarily the same time the malpractice is committed.” Brown, 275 Ga. App. 761, 767 (2005).

Therefore, in Plaintiff’s case, the “’operative question is: when did symptoms of the injury caused by the [alleged malpractice first manifest themselves’” to her? Brown at 767. In order for the new injury exception to apply, this question must then be followed by the questions of whether there is evidence of that the Plaintiff patient remained asymptomatic for a period of time following the misdiagnosis, which in Plaintiff’s case is evidenced by the lack of laboratory testing by Defendant or concern that the headaches may be related to kidney disease, and there is evidence that the Plaintiff developed a new injury, which is end-stage renal disease in Plaintiff’s case. Amu v. Barnes, 286 Ga.App. 725, 729 (2007).

1. Plaintiff was asymptomatic from June 2, 2004 until December 3, 2008 as to the end-stage renal disease and therefore meets the first requirement of the new injury exception.

“In order for this exception to apply, not only must there be evidence that the [patient] developed a new injury, but [the Plaintiff] also must remain asymptomatic for a period of time following the misdiagnosis.” Amu v. Barnes, 286 Ga.App. 725, 729 (2007) citing Burt v. James, 276 Ga. App. 370, 374 (2005).In Amu v. Barnes, the Plaintiff sought treatment from the Defendant doctor for a specific purpose, rectal bleeding, and the Defendant failed to properly diagnose the Plaintiff for colon cancer. Amu at725. The Plaintiff experienced an asymptomatic period after the treatment and was treated by a variety of doctors afterward. Amu at 726. The Plaintiff then developed terminal colon cancer as a result of Plaintiff’s misdiagnosis. Id.

Similarly, Plaintiff first visited Defendant seeking treatment for a specific purpose, his elevated blood pressure, for which he was diagnosed with hypertension. See Complaint, ¶ . Plaintiff continued to see Defendant over the course of the next four and a half years, during which time the renal disease developed in Plaintiff, and Defendant failed to properly diagnose Plaintiff for renal disease, which was caused and worsened due to the blood pressure medications prescribed by Defendant, and could have been detected in the tests that should have been conducted due to the medications. During this time, Plaintiff was asymptomatic as to the renal disease; Plaintiff developed end-stage renal disease as a result of Defendant’s misdiagnosis, which is irreversible and progresses from acute renal disease, which is reversible. See Expert depo., 45:4-46:13.

If evidence does not establish, as a matter of law, that a certain symptom or symptoms experienced by a person are necessarily a symptom of a “new injury”, but that they could be attributable to other factors, the person is still in an asymptomatic period regarding the “new injury.” Cleaveland v. Gannon, 284 Ga. 376, 382 (2008). In Cleaveland v. Gannon, doctors failed to diagnose kidney cancer in a patient, which became metastatic. Cleaveland at 376. The Plaintiff and his wife filed suit on October 29, 2004, alleging that “had the cancer been diagnosed and treated before it metastasized, a complete recovery would have been likely.” Id. The Defendants filed motions for summary judgment on the ground that the original claim was barred by the two-year statute of limitations and that a wrongful death claim later added by the Plaintiff’s wife was barred by the five-year statute of repose. Id.

The Plaintiff invoked the “new injury” exception, arguing that the original condition was a treatable cancer confined to his kidney, and because it went undiagnosed the result was the metastasized untreatable cancer that moved outside the kidney. Cleaveland at 378. Although the Plaintiff was tested again for microscopic hematuria and again had positive results, it was not decisively a symptom of kidney or metastatic cancer. Cleaveland at 381. Additionally, the court found that the Plaintiff observing blood in his urine was not necessarily a symptom of metastatic cancer, as it could also be due to other causes or a symptom of a bladder infection. Cleaveland at 382. The Plaintiff also experienced “night sweats” which the court also found to not necessarily be a symptom of the cancer, as it could be related to many other causes. Id. The court found that despite these symptoms, during the time the Plaintiff was treated by the doctors he was asymptomatic of his “new injury”, metastatic cancer. Id.

The case at hand is factually analogous to Cleaveland v. Gannon. Defendant alleges that the high blood pressure, fatigue and continuous headaches that Plaintiff experienced from his first visit with Defendant on June 2, 2004 show that there were symptoms of the injury. However, at this point Plaintiff would have not had any renal disease or one at a very early stage, which would most likely have been treatable. See Expert depo. 52:1-5. In addition, these symptoms were nonspecific, and not necessarily the sign of renal disease, and Plaintiff attributed them, as did Defendant, to the hypertension that Plaintiff had been diagnosed with, or to stress. See Torres depo. 82:2-3; 149:11-14. The medications Defendant prescribed, in addition to the hypertension, resulted in the kidney damage, the beginning stages of which would have been detected through simple laboratory tests and diagnosed, but Defendant failed to have the tests conducted. Expert depo. 58:1-25. Plaintiff was asymptomatic until the gout and blood work done December, when he was formally diagnosed with end-stage renal disease on December 31, 2008.

2. Acute renal failure, the subsequent injury, could not reasonably have been discovered by Plaintiff before the laboratory blood tests that established kidney failure.

In line with good case law, “when there has been a misdiagnosis of a medical condition, the tortious injury commences when the harm was discovered or reasonably should have been discovered.” Miller v. Kitchens, 251 Ga. App. 225, 226 (2001) citing Walker v. Melton, 227 Ga. App. 149, 150-151 (1997). In addition, case law states that, “[W]hen a misdiagnosis results in subsequent injury that is difficult or impossible to date precisely, the statute of limitation[s] runs from the date symptoms attributable to the new injury are manifest to the plaintiff.” Walker v. Melton, 227 Ga. App. 149,151 (1997).

In the instant case, Dr. Torres failed to diagnose Plaintiff’s kidney disease over the course of time in which Plaintiff was a patient of Defendant’s, and the misdiagnosis ultimately led to Plaintiff having end-stage renal disease. The exact dates when the renal disease developed and when it worsened are impossible to tell. See Expert depo., 52:1-9. However, the symptoms attributable to the end-stage renal disease were not manifest to Plaintiff until the date he was diagnosed, December 30, 2008.

III.       Under O.C.G.A. § 9-3-71(b), the five-year statute of repose on Plaintiff’s claims had not expired prior to the filing of the Complaint, as Defendant’s negligent act occurred in the five years prior to the filing of the Complaint.

“OCGA § 9-3-71 (b) does not provide that the period of repose commences on the date of the first ‘negligent . . . act or omission.’ It provides that the period commences on the date the negligent act or omission occurs, thus establishing the negligent act as the trigger for commencement of the period of repose without purporting to limit the number of separate negligent acts which may act as a trigger.” Schramm v. Lyon, 286 Ga. 72, 74 (2009). The negligent acts performed by Defendant which resulted in Plaintiff’s end-stage renal failure were the prescriptions written by Dr. Torres and the refills that followed thereafter. Expert depo. 57:1-24. Based on the law as decided in Schramm v. Lyon, the adding of additional prescriptions and the constant refills of each without performing laboratory tests on Plaintiff each count as new and separate instances of professional negligence.

On March 3, 2005, Plaintiff was prescribed the highest possible prescriptive amount of Lisiniopril, on March 7, 2005, Defendant added the prescription of Hydrochlothizide (HCTZ 20 QAM), and on July 254, 2005 Defendant added the prescription of Toprol XI 100 ZD. Complaint ¶¶ 4-7. Each of these instances represents a different point in which Defendant negligently prescribed medicine to Plaintiff, and negligently omitted to do any laboratory testing on Plaintiff, both of which fell below the standard of care. Each of these dates is within five years prior to the filing of the Complaint, and thus Plaintiff’s claims are not barred due to the five-year statute of repose.

DISCUSSION

I.       The Supreme Court of Tennessee looks disfavorably upon the locality rule for standard of care regarding physicians in the State, opining that it should be “relegated to the ash heap of history” and replaced by the national standard.  However, as the rule is statutorily created by the Tennessee legislature, the Court is averse to doing away with it.  Instead, the Court has lowered the bar, allowing a relaxed more forgiving interpretation, which allows a greater number of out of state physicians to be admitted as experts in medical malpractice cases.

     The Supreme Court, Sharon G. Lee, J., held that: a medical expert in a medical malpractice case must demonstrate “a modicum” of familiarity with the medical community in which the defendant practices or a similar community; (emphasis mine) Shipley v. Williams, 350 S.W.3d 527, 552-53 (Tenn. 2011).  Furthermore, a proffered medical expert is not required to demonstrate firsthand and direct knowledge of a medical community and the appropriate standard of medical care there in order to qualify as competent to testify in a medical malpractice case, rejecting Eckler v. Allen, 231 S.W.3d 379, and Allen v. Methodist Healthcare Memphis Hosps., 237 S.W.3d 293.

There is substantial Tennessee precedent that permits experts to become qualified by educating themselves by various means on the characteristics of a Tennessee medical community. See Stovall, 113 S.W.3d at 723; Searle, 713 S.W.2d at 64–65; Taylor, 231 S.W.3d at 368–71; Pullum v. Robinette, 174 S.W.3d 124, 132–33 (Tenn.Ct.App.2004); Bravo, 148 S.W.3d at 360–61; Ledford, 742 S.W.2d at 648.  “A profferedexpert may educate himself or herself on the characteristics of a medical community in order to provide competent testimony in a variety of ways, including but not limited to reading reference materials on pertinent statistical information such as community and/or hospital size and the number and type of medical facilities in the area, conversing with other medical providers in the pertinent community or a neighboring or similar one, visiting the community or hospital where the defendant practices, or other means. We expressly reject the “personal, firsthand, direct knowledge” standard formulated by the Court of Appeals in Eckler and Allen.”  Shipley v. Williams, 350 S.W.3d 527, 552-53 (Tenn. 2011).